Firemen's Ins. Co. of Newark, NJ v. Robbins Coal Co.

• Decision Date: 11 May 1961
• Docket Number: No. 18532.,18532.
• Parties: FIREMEN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant, v. ROBBINS COAL COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

288 F.2d 349 (1961)

FIREMEN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant, v. ROBBINS COAL COMPANY, Inc., Appellee.

No. 18532.

United States Court of Appeals Fifth Circuit.

March 30, 1961.

Rehearing Denied May 11, 1961.

Joseph S. Mead, Emmett R. Cox, Birmingham, Ala., for appellant.

John S. Foster, Birmingham, Ala., for appellee.

Before TUTTLE, Chief Judge, and CAMERON and WISDOM, Circuit Judges.

TUTTLE, Chief Judge.

At the threshold of this case we are met by a motion by the appellant to permit it to amend its petition for removal from the state court in order adequately to allege grounds of diversity jurisdiction. The difficulty arose because of the 1958 amendment to the removal statute, 28 U.S.C.A. § 1332(c), which now defines corporate citizenship to include any state in which a corporate party has its principal place of business. The petition for removal alleged diversity in the following terms:

"Petitioner further shows that the plaintiff, Robbins Coal Company, Inc., a corporation, at the time of the beginning of said action and ever since has been and still is a citizen of the State of Alabama; that the petitioner, the defendant in this cause, at the beginning of said action and ever since has been and still is a corporation organized and existing under and by virtue of the laws of the State of New Jersey, and is a citizen of said State; that the controversy in said cause of action is entirely between citizens of different states; * * *"

Recognizing that the specific allegation of citizenship may be inadequate to aver diversity jurisdiction, see Kinney v. Columbia Savings & Loan Ass'n, 191 U.S. 78, 24 S.Ct. 30, 48 L. Ed. 103, and that a jurisdictional defect must be noticed by this Court sua sponte, even though not raised by the adverse party, the appellant, the removing party below, moved here to cure this omission in its petition for removal. It seeks to add the allegation that the plaintiff's principal place of business was in Alabama and that the defendant's principal place of business was in New Jersey. This would cure the defect.

The appellee does not dispute, but in fact concedes, the truth of the allegations, and agrees that it also believes that it is permissible for the appellant to file such an amendment.

We agree. This Court has held that a defective allegation of diversity jurisdiction in a suit originally filed in a federal district court can be amended in the Court of Appeals. Kaufman v. Western Union Telegraph Co., 5 Cir., 224 F.2d 723. We think this is authorized by the provisions of 28 U.S.C.A. § 1653:

"Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."

Moreover, we think this same right should obtain with respect to a petition for removal. See Park v. Hopkins, D.C. S.D.Ind., 179 F.Supp. 671. The general allegation in the original petition for removal in this case, "that the controversy in said case is entirely between citizens of different states," although conclusionary in nature and possibly not sufficient if not amended, is sufficient to confer jurisdiction on the federal courts to permit the curing of the defect by amendment. See Kinney v. Columbia Savings & Loan Ass'n, supra.

We conclude, therefore, that by the allegations relating to citizenship asserted in appellant's motion, and conceded by appellee's response, the original motion for removal is hereby deemed to have been amended to incorporate the additional allegations of citizenship. As thus amended, the removal was proper.

The principal question on the merits of the appeal is whether the plaintiff made out a sufficient case to warrant a submission by the trial court to the jury the plaintiff's contention that an expensive coal-loading structure collapsed as a result of a "landslide, slide," which was the peril insured against in the defendant's policy.

Although it is difficult to outline the contentions of the parties without photographs or drawings, we believe the factual situation necessary for a disposition of the legal issues can be recited in a simplified form.

The collapsed structure was in the nature of two large coal bins which were joined by a conveyor to a tipple. We are not concerned with the conveyor or the tipple. The coal bins were built on a steel frame over a north-south spur railroad track. The steel frame was supported by six steel I-beams. Extending out from the east, or road, side of the frame were two conveyor belts by means of which coal could be delivered from the bins to trucks standing on a road that paralleled the railroad track. This road was built at a level some ten feet higher than the railroad level, and was separated from the railroad tracks by a steep bank and a walkway alongside the tracks. The conveyor belts were supported by an additional steel structure consisting of steel beams resting on three steel I-beams. It was undisputed that these upright I-beams did not bear any of the load of the coal bins. They formed a line of three beams parallel to the steel I-beams that supported the bins. Two of the columns supporting the conveyor belts were bolted onto concrete blocks imbedded at the top of the bank. A third one, (designated in exhibits and hereafter called, column B, and which is the column as to which all of the litigation relates) was bolted onto the center of three steel channels which were in turn bolted onto a two-foot by three-and-a-half-foot steel plate. This entire footing was based "on solid ground" at the bottom of an excavation in the bank of some four feet depth. The record does not indicate whether this excavation was left open or was later filled in. However, it is undisputed that it was protected by a stone retaining wall on the upper side, and that this wall was still in place after the collapse.

On February 23, 1958, the coal bins collapsed and fell towards the road. Photographs taken after this casualty show both the I-beams supporting the bins and the I-beam supporting the conveyor structure badly twisted and bent in the direction of fall. Stated as simply as possible, the plaintiff contended that a movement of the earth amounting to what is contemplated in the insurance policy under the definition of "landslide, slide," caused this beam to drop or slide from two to four feet; that this caused a pull through a tie rod on the center of the three easterly beams supporting the coal bins, and that this brought about the fall of the entire structure.

The defendant contends that the plaintiff failed in its proof to show that a movement of earth of any kind took place. It contends that the collapse took place by reason of the failure of the beams supporting the coal bins; that this caused the bins to fall over on beam B and thus caused it to bend and twist in the form in which it was found after the occurrence.

Clearly we should not undertake to resolve such a question of fact if there is substantial evidence to support the respective theories advanced by the parties. The burden of proof that a "slide" occurred and caused the damage is on the plaintiff. Evidence, in order to warrant submission to a jury, must present something more than a theory which will permit speculation, see Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 87 L.Ed. 1458, and it must be something more than a mere scintilla. Martin v. Burgess, 5 Cir., 82 F.2d 321; New York Life Ins. Co. v. Sparkman, 5 Cir., 101 F.2d 484; Reuter v. Eastern Air Lines, 5 Cir., 226 F.2d 443, 445; Nashville Bridge Co. v. Ritch, 5 Cir., 276 F. 2d 171.

In view of the fact that no witness testified to the actual fact of any movement of the earth, and that a finding by the jury of such movement must necessarily have resulted by a process of inferring that fact from surrounding circumstances, it becomes necessary that we carefully review the evidence in support of the plaintiff's theory. Of course, in doing so we must view the evidence supporting the plaintiff's position most strongly in its favor. See Shaw v. Edward Hines Lumber Co., 7 Cir., 249 F.2d 434; Burcham v. J. P. Stevens & Co., Inc., 4 Cir., 209 F.2d 35. Except as just stated, we do not, of course, have the power to weigh the evidence.

Support for the plaintiff's theory was in the nature of expert testimony given by a qualified engineer who theorized that if column B dropped between two and four feet this would have exerted some 60,000 pounds of pull on a tie rod connecting column B to the center support column for the bins and would so throw the structure out of balance as to bring down the coal bins in the manner in which they fell. Support for the hypothesis that column B had dropped from two to four feet was supplied by the testimony of plaintiff's vice president Haughton, who testified that upon examining column B after the collapse it was "down lower on the bank," and that "it was about, I would say, two or three or four feet lower than what it normally was." In response to a question, "Do you know of your own knowledge as to whether or not when these bins fell on column B and bent it, whether or not that caused it to move or not?" Haughton answered, "I couldn't answer that." Haughton also testified that there was a part of the bank in place before the collapse but that after the collapse and after the debris had been removed, the bank was not there.

In dealing with the facts, we conclude that the jury could have found that if column B moved first then this brought about the collapse. The jury could also believe that the footing of the column was from two to four feet lower after the collapse than it had been before. The jury could also believe that the ground surrounding the footing was a type of soil that was susceptible to sliding under certain conditions of moisture; thus, even though the steel plate and channel beams were 24 x 42 inches in surface contact on what the plaintiff's vice president Haughton said was "solid earth," there was testimony from which the jury...